The enactment by President Robert Mugabe of Statutory Instrument
No. 46 of 2008 being the Presidential
Powers (Temporary Measures) (Amendment of the Electoral
Act) regulations of 2008 summarizes everything that is wrong
with this election in particular and Zimbabwe in general. The above
regulations seek to amend Sections 55, 59 and 60 of the Electoral
Act Chapter 2:13 as amended by the Electoral Laws Act Amendment
No. 17 of 2007. Amendment No.17 to the Electoral Act, which became
law on the 11th of January 2008, was a piece of law negotiated between
the MDC and Zanu PF during the SADC
sponsored talks facilitated by President Mbeki. That piece of
legislation was agreed to and signed by the parties in Pretoria
on the 30th of October 2007 and presented to SADC through President
Mbeki on the very same day. Thus, it could be said, without hesitation
that, that amendment together with amendments to the Public
Order and Security Act, Access
to Information and Protection of Privacy Act and the Broadcasting
Act which were all passed in Parliament on the 20th of December
2007 and gazetted on the 11th of January 2008 are SADC documents
contractually agreed between the MDC and Zanu PF.

Before the SADC
dialogue, the law allowed policeman and members of the defense forces
to assist the Zimbabwe Electoral Commission (ZEC) and most importantly
allowed policeman to be present at any polling station. Further,
in terms of section 59 and 60, the presence of the police was required
when an official assisted a physically incapacitated voter. During
the SADC negotiations, the MDC's position was that the police had
been abused and used systematically to generate intimidation and
threats. Furthermore, it was argued that it was intimidatory to
have an illiterate or physically incapacitated voter vote in the
presence of a police officer. Zanu PF through its negotiators, Patrick
Chinamasa and Nicholas Goche accepted the unquestionability of this
argument hence agreements on new provisions that removed any reference
to the police officers.

What President
Mugabe has therefore done in the above regulation is to bring the
old order and allow police officers back into polling stations but
most importantly allowed incapacitated voters to vote in the presence
of police officers.

Quite clearly,
the re-enactment of the old law confirms the presence of the mischief
that we had dealt with in the SADC dialogue. The mischief being
that police are indeed used as a weapon of intimidation in the Zanu
PF power retention agenda. Secondly, in our view, it is unacceptable
that Mugabe, a participant in this election can change the rules
of the game when the game is being played. Surely, one cannot be
a player and a referee at the same time. One cannot play tennis
with continuously moving the baseline. Thirdly, sight must not be
lost of the fact that it was Parliament that enacted the new law
on the 20th of December 2007. For President Mugabe to place himself
above Parliament and bulldoze his way, as he has always done, reflects
the sickness of this establishment. How can one man be above the
law and play god with all of us. This election represents a turning
point for Zimbabwe, Mugabe has no right to privatize the same and
treat this nation as Zimbabwe Private Limited with one shareholder,
Robert Gabriel Mugabe.

What is disturbing
is that the Electoral Act Chapter 2:13 section 192 only allows the
Zimbabwe Electoral Commission powers of making electoral regulations.
The granting of powers to make regulations in terms of section 192
means that no one has regulatory powers. In our view therefore,
Mugabe's regulations are unlawful in that he has usurped the laws
of ZEC under section 192 of the Electoral Act.

Over and above,
Mugabe's appetite of making Presidential decrees through his legendary
abuse of the Presidential Powers (Temporary Measures) Act Chapter
10:20 is unacceptable as it is a clear breach of the rule of law.
It is quite clear that his powers to make laws using the Presidential
Powers are very limited. The President can only make regulations
when it appears to him that the situation that has arisen or is
likely to arise needs to be dealt with in the interest of defense,
public security, public health, the economic interests of Zimbabwe
or the general public interest. How disallowing or allowing a policeman
into the polling station can be regarded as a national emergency
eludes one's wisdom.

It is our respectful
contention therefore that the above presidential contentions are
clearly ultra vires the Electoral Act and the Presidential Powers
(Temporary Measures) Act. In addition, in any event, allowing Mugabe
to make decrees is a breach of the doctrine of the separation of
powers. Put simply, the Presidential Powers (Temporary Measures)
Act is itself clearly unconstitutional and there is only one law
making body in Zimbabwe that is the Parliament.

Lastly, it is
quite clear that Mugabe's actions are an assault on the SADC dialogue
therefore an assault on SADC itself. Mugabe is clearly daring SADC
knowing clearly that the latter will blink. Unfortunately it does
not appear likely that anyone in SADC would have the guts to stand
up to Mugabe. It is obvious that the old-boys mentality which African
institutions have been accused of generating still remains the operational
matrix. It is therefore not a surprise that the SADC Observer Mission
in Zimbabwe can state that the election will be free and fair despite
the gross and evident electoral abuse. Of that abuse none is more
obscene than Chapter 2:13.

Tendai Biti,
Hon.
MDC Secretary General

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